Custom, Excise & Service Tax Tribunal
Cce, Indore vs M/S N.H.K. Springs Limited on 3 May, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi. Date of hearing/ decision: 03.05.2016 For Approval and Signature: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. V. Padmanabhan, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Excise Appeal No. 386 of 2007-Ex. (Arising out of the Order in Appeal No. IND-I/363/2006 dated 05.12.2006 passed by the Commissioner (Appeals-I) Customs and Central Excise, Indore). CCE, Indore Appellant Vs. M/s N.H.K. Springs Limited Respondent
Appearance:
Ms. Neha Garg, DR for the Revenue. Shri Vipul Agarwal, Advocate for the respondent- assessee. Coram: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. V. Padmanabhan, Member (Technical) Final Order No. Per: Archana Wadhwa:
Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal. We have heard Ms. Neha Garg, ld. DR for the Revenue and Shri Vipul Agarwal, ld. Advocate for the respondent- assessee. It is seen that as a result of some valuation dispute in respect of the clearances made by the respondent to their sister unit they were asked to pay some additional amount of duty. Accordingly, the appellant paid a sum of Rs. 61,808/- well in advance in their PLA account on 29.03.2004. Subsequently they produced CAS-4 certificate before the authorities and the valuation dispute was settled in their favour by accepting the value at which the goods were cleared by the respondent. Accordingly, they filed a refund claim of Rs. 61,808/- on 29.07.2004. Revenue returned the application to the respondent on the ground that the same has been filed pre-mature inasmuch as investigation about the valuation work was still going on. Accordingly, appellant resubmitted their claim on 28.10.2005, after the completion of the investigation. The said refund claim was further revised by them bringing it down to Rs. 40,820/-, after making adjustment of Rs. 20,988/- which they were required to pay during the period 2003-04.
2. On appeal against the same Commissioner (Appeals) observed that admittedly claim was filed on 29.07.2004. The appellant having state their right to claim of refund of the said amount as early as in July, 2004, the subsequent return of the same and refilling of the same in October, 2005, at the behest of the Revenue, cannot allow the Revenue to reject the claim on the issue of time bar. As regards unjust enrichment, he observed that payment was made by a debit entry in PLA and not as per any supplementary invoice or document for payment of duty, the question of passing on this duty payment to their sister concern would not arise. He also observed that since the clearances were being made to assessees sister unit, who has not procured any credit of the duty paid by the assessee, the refund claim would not be hit by the bar of unjust enrichment.
3. Being aggrieved with the said order of the Commissioner (Appeals), Revenue has filed the present appeal.
4. After hearing both the sides, we find that two legal issues as to whether the refund claim filed by the respondent was barred by limitation and as to whether the same was hit by unjust enrichment. As regards bar of limitation, we find that the appellant debited the duty in their PLA on 22.03.2004 and claim was filed on 29.07.2004. Such refund application was not accepted by the Revenue and was returned after the completion of the investigation. The same was re-filed by the assessee on 28.10.2005. There is no date available on record with regard to completion of the investigation. Otherwise also we note that when an assessee deposits the amount by making a debit entry in their PLA account during the course of investigation, when some dispute on the valuation is going on, such debit has to be held as deposit and not as duty. In any case the assessee has no legal obligation to make a deposit of said amount during the pendency of the investigation which dispute ultimately got resolved in their favour. As such application filed by the respondent on 29.07.2004 in respect of the deposit made by them on 22.03.2004, is required to be taken into consideration for the purpose of limitation. Inasmuch as the same was within the period of limitation, we agree with the views of the Commissioner (Appeals).
5. As regards unjust enrichment, we find that the said deposit was made by the appellant as a lumpsum amount by making debit entry in their PLA account without raising any supplementary invoice or any other document. Admittedly, if no invoice was ever raised by the respondent, the question of recovery of the said amount from any other person does not arise. Further, the Commissioner (Appeals) has also observed that the goods were cleared to their sister unit who has not availed any cenvat credit of the same. This fact reflect upon the fact that no invoice was raised, nor was any amount recovered from the customer and no credit of the same was availed. In such a scenario the appellate authority was right that refund claim was not hit by unjust enrichment.
6. Revenue is also aggrieved by direction of the appellate authority to give interest to the assessee on account of delay in payment of refund amount with reference to original claim filed on 29.07.2004 in terms of the provisions to Section 11BB of the Act. The contention of the ld. AR is that such refund claim has arisen as a consequential relief and as such the interest provision would be applicable from a period of three months from the consequential order. However, on being asked to which order the Revenue is relying upon, as a consequence of which refund arises ld. AR is not in a position to show any such order. In fact, we find that there was no order on the valuation and it is during the investigation itself , the valuation was found in favour of the assessee. Otherwise also as already observed, the assessee was under no legal obligation to make the deposit during the investigation. As such we agree with the order passed by the ld. Commissioner (Appeals) that having filed the refund application on 29.07.2004, the respondent would be entitled to the interest in terms of the provisions of Section 11BB of the Act.
7. In view of the foregoing, we find no reason to interfere in the order of the Commissioner (Appeals). Revenues appeal is accordingly rejected.
(Order dictated and pronounced in open Court).
(Archana Wadhwa) Member (Judicial) (V. Padmanabhan) Member (Technical) Pant